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Should Repairers Have Something to Lien On? an Analysis of Reform Options for the Common Law Lien in The

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Should Repairers Have Something to Lien On? an Analysis of Reform Options for the Common Law Lien in The TORY HANSEN SHOULD REPAIRERS HAVE SOMETHING TO LIEN ON? AN ANALYSIS OF REFORM OPTIONS FOR THE COMMON LAW LIEN IN THE PERSONAL PROPERTY SECURITIES ACT 1999 Submitted for the LLB (Honours) Degree Faculty of Law 2015 1 Abstract The repairer’s lien is one of the last remaining at common law. Under the Personal Property Securities Act 1999, a repairer’s lien over goods takes priority over any security interest in the same goods. Due to the advent of trading on credit terms, repairers are increasingly unable to rely on a lien as a means of security. Because of the nature of their work, ordinary security interests taken by repairers are likely to lose in any priority dispute. This paper addresses two broad points within this issue. The first point considered is whether the repairer’s interests should be protected, concluding that they should be afforded a super priority similar to the current scheme. The second point considered is the nature of reform that could be undertaken, concluding that a statutory lien should be inserted into the PPSA. This lien would generally subsist in credit trading environments whilst not adversely affecting the interest of other creditors. Key words: common law repairer’s lien; Personal Property Securities Act 1999; priority. 2 Contents I INTRODUCTION ........................................................................................................................ 4 II BACKGROUND TO THE COMMON LAW POSSESSORY LIEN........................................... 5 A HISTORICAL BEGINNING OF THE COMMON LAW POSSESSORY LIEN ............................................ 5 B CHARACTERISTICS OF THE COMMON LAW REPAIRER’S LIEN ........................................................ 7 1 Requirements for a common law repairer’s lien .................................................................. 7 2 Extinguishment of lien ...................................................................................................................... 8 C COMMON LAW LIENS DISTINGUISHED FROM STATUTORY LIENS ................................................ 9 III INTERACTION BETWEEN THE REPAIRER’S LIEN AND THE PPSA............................... 9 A ENACTMENT OF THE PPSA .................................................................................................................. 9 B PRIORITY RULES IN THE PPSA ........................................................................................................ 10 IV CREDIT TERMS INCONSISTENT WITH REQUIREMENTS OF LIEN .............................11 A DEBT DUE? .......................................................................................................................................... 12 B CONTINUOUS POSSESSION? .............................................................................................................. 13 V SHOULD THE REPAIRER’S INTERESTS BE PROTECTED? ............................................13 VI THE CASE FOR CODIFICATION ............................................................................................15 A INCREMENTAL CHANGE TO COMMON LAW UNFEASIBLE ............................................................ 16 B A DEEMED SECURITY INTEREST FOR REPAIRERS AND WOULD BE LIENHOLDERS ................. 16 C A STATUTORY LIEN? ......................................................................................................................... 17 1 Right of sale ........................................................................................................................................ 18 2 Solving the debt issue ...................................................................................................................... 19 3 Solving the issue of continuous possession ............................................................................ 20 4 Lienholder’s interaction with receiver or liquidator ........................................................ 22 D THE APPROPRIATE PRIORITY RANKING FOR A LIEN .................................................................. 22 1 Comparison with a purchase money security interest ..................................................... 24 2 Historical reasoning pre-PPSA .................................................................................................... 24 3 Nature of the lien ............................................................................................................................... 26 VII CONCLUSION ............................................................................................................................28 APPENDIX I A DRAFT STATUTORY LIEN .............................................................................30 BIBLIOGRAPHY .................................................................................................................................32 3 I Introduction A business is not always successful. The nature of a relatively free market means that businesses can and sometimes will fail, leaving an entrepreneur insolvent. The risk of insolvency is often borne by creditors. Creditors under the Personal Property Securities Act 1999 (PPSA) can take a security interest in the personal property of their debtors. This gives them recourse to the debtor’s assets in the event of a default. The Act applies mechanically. Priority rules are clear but are not based on title.1 Different classes of creditors are afforded different priorities based on the measures they have taken to advance their own position and interests. The common law lien is one such interest available to repairers under the Act.2 Broadly, a common law lien is a right to retain possession of goods pending satisfaction of a debt.3 It has traditionally been a useful tool for repairers to secure payment of money owed. Increasingly situations arise where repairers are unable to rely on the common law lien as a means of security. This is because of the advent of trading on credit terms as a common commercial practice. Such practice conflicts with the mechanical rules of the PPSA. Conversely, repairers who do comply with the requirements for a lien under the Act enjoy a ‘super priority’, superior to that of any security interest. These two extremes provide interesting questions for consideration: on what basis should lienholders enjoy such a priority under the PPSA? What options are available to reformers seeking to reconcile the interests of an unpaid repairer with other creditors, whilst promoting commercial and legal practicality? It is often said that when the law fails to facilitate commerce it should be reformed to accommodate common commercial practices.4 This paper will argue that a sensible balance can be struck by codifying the common law repairer’s lien. The new statutory lien would continue to enjoy super priority. A statutory lien could facilitate 1 Linda Widdup Personal Property Securities Act: A Conceptual Approach (3rd ed, LexisNexis, Wellington, 2013) at 99. 2 Personal Property Securities Act 1999, s 93. 3 Hammonds v Barclay (1802) 2 East 227 at 235. 4 Commercial Factors Ltd v Maxwell Printing Ltd [1994] 1 NZLR 724 (HC) at 727. 4 commerce whilst protecting the rights of repairers and preventing harm to competing security interest holders. This paper will proceed in three broad stages. It will first describe the common law lien and explain its interaction with the Personal Property Securities Act 1999. Secondly, this paper will address the issues that exist within this interaction. Thirdly, It will analyse the viability of various reform options that could be employed to remedy the issues in the current scheme. II Background to the Common Law Possessory Lien A Historical Beginning of the Common Law Possessory Lien To fully understand the common law possessory lien’s interaction with the PPSA, it is necessary to appreciate the nature of a lien itself. A common law possessory lien is a right to retain possession of another’s personal property pending satisfaction of a debt in relation to that property.5 It is a pre-legal notion, often termed a ‘self-help’ remedy that existed before the advent of security interests and contract.6 Possession is said to be at the “heart and soul” of the common law possessory lien.7 It is a mere possessory right, developed to assist a person in achieving payment of the debt owed to them in relation to goods.8 The relationship between the lienholder and the owner of the property must fall into one of two categories for a lien to be recognised at common law. The first category is professions historically deemed by the common law to have a duty to the public (such as innkeepers and carriers).9 These have largely been codified in New Zealand law.10 The second category comprises those who improve the goods of others by their skill or labour.11 The repairer’s lien is in the latter category. The common law has allowed liens to develop consistent with 5 Toll Logistics (NZ) Ltd v McKay [2011] NZCA 188 at [16]. 6 Tappenden v Artus (1962) 2 QB 185 (CA) at 195 per Diplock LJ. 7 Bay Flight 2012 Ltd v Flight Care Ltd [2012] NZHC 484 at [23]. 8 At [23]. 9 Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48 at 54. 10 See below at 9. 11 Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd, above n 9, at 54. 5 commercial practice. If a lien type arrangement is a custom in a commercial setting, then a court may recognise that arrangement and give it legal effect.12 Two further distinctions have emerged through time. The first is that between a particular lien and a general lien. A particular lien allows the
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